M. Harris v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Harris, :
: No. 853 C.D. 2015
Petitioner : Submitted: November 25, 2015
:
v. :
:
Pennsylvania Board :
of Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: February 9, 2016
Matthew Harris petitions for review of the April 29, 2015, decision of
the Pennsylvania Board of Probation and Parole (Board), dismissing Harris’s petition
for administrative review (Petition) as untimely. Appointed counsel, Richard C.
Shiptoski, Esquire (Counsel), has filed an application for leave to withdraw asserting
that Harris’s Petition lacks merit. We grant Counsel’s application for leave to
withdraw and affirm the Board.
Counsel seeking to withdraw from representation must: (1) notify the
parolee of the request to withdraw; (2) furnish the parolee with a copy of the Anders1
1
Anders v. California, 386 U.S. 738 (1967).
brief or no-merit letter; and (3) advise the “parolee of his right to retain new counsel
or raise any new points that he might deem worthy of consideration.” Banks v.
Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth.
2003). Counsel’s “brief or letter must set forth (1) the nature and extent of counsel’s
review of the case; (2) the issues the [parolee] wishes to raise; and (3) counsel’s
analysis concluding that the appeal is frivolous.” Id. We will not examine the merits
of an appeal until we are satisfied that counsel has complied with the technical
requirements of Anders. Wesley v. Pennsylvania Board of Probation and Parole, 614
A.2d 355, 356 (Pa. Cmwlth. 1992). Here, Counsel has satisfied the technical
requirements of Anders2; thus, we may proceed to review the merits of Harris’s
Petition.
On November 6, 2014, the Board issued a decision modifying the
Board’s action of July 8, 2014, changing Harris’s maximum release date to
November 20, 2015. On March 12, 2015, four months later, Harris filed a petition for
administrative review from the Board’s November 6, 2014, decision. On April 29,
2015, the Board dismissed Harris’s Petition as untimely. Harris now petitions for
review of that decision.
In accordance with 37 Pa. Code §73.1(b)(1) and (3):
(1) A parolee . . . may petition for administrative review
under this subsection of determinations relating to
2
The record shows that Counsel notified Harris of his request to withdraw, provided Harris
with a copy of his Anders brief, and advised Harris of his right to submit a brief on his own behalf.
In the Anders brief, Counsel analyzed the issues on appeal and determined that Harris’s appeal is
wholly frivolous.
2
revocation decisions which are not otherwise appealable
under subsection (a). Petitions for administrative review
shall be received at the Board’s Central Office within 30
days of the mailing date of the Board’s determination.
***
(3) Second or subsequent petitions for administrative
review and petitions for administrative review which are out
of time under this part will not be received.
This court has determined that the Board does not have jurisdiction to decide a
petition for administrative review received after the 30-day appeal period has expired.
Pometti v. Pennsylvania Board of Probation and Parole, 705 A.2d 953, 955 (Pa.
Cmwlth. 1998). “This time period is jurisdictional and cannot be extended absent a
showing of fraud or a breakdown of the administrative process.” Smith v.
Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth.
2013).
Harris does not allege fraud or a breakdown in the administrative process
but rather argues that the legality of a sentence is a non-waivable issue. See
Commonwealth v. Ford, 461 A.2d 1281, 1288-89 (Pa. Super. 1983) (stating that the
lawfulness of a sentence imposed upon a conviction is not waivable). Backtime,
however, is not a sentence. “Backtime” is “[t]he unserved part of a prison sentence
which a convict would have been compelled to serve if the convict had not been
paroled.” 37 Pa. Code §61.1. A “sentence” is defined as “[t]he judgment that a court
formally pronounces after finding a criminal defendant guilty.” Black’s Law
Dictionary 1485 (9th ed. 2009). The Board’s decision informing Harris, a parole
violator, of the amount of backtime owed does not amount to a sentence.
3
Because Harris’s Petition was untimely, the Board lacked jurisdiction to
decide Harris’s Petition.3
Accordingly, we grant Counsel’s application for leave to withdraw and
affirm the Board’s decision.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
3
Because the Board lacked jurisdiction, we need not address Harris’s arguments regarding
the calculation of his backtime. See 37 Pa. Code §73.1(b).
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Harris, :
: No. 853 C.D. 2015
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 9th day of February, 2016, we hereby grant the
application for leave to withdraw as counsel filed by Richard C. Shiptoski, Esquire,
and affirm the April 29, 2015, decision of the Pennsylvania Board of Probation and
Parole.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge